Killing and the Ethical Erosion from Roe v. Wade

By Lynn D. WardleBruce C. Hafen Professor of Law

J. Reuben Clark Law School

Prepared for the Mini-Symposium onReflections on 35 Years of Roe v. Wade: Pro

and ConJanuary 22, 2008

306 JRCB, BYU

Prohibition of Killing Is An Ethical Cornerstone of our Legal System

• Moses: “Thou Shalt Not Kill” (Exodus 20:13)

• Hobbes: Society formed to escape “continual fear, and dangers of violent death”

• Locke (“America’s Philosopher”): Law of Nature “no one ought to harm another in his life” but “ought to do as much as he can to preserve the rest of mankind” and “what tends to the preservation of the life … of another”

Abortion is killing

• Abortion is not murder, but it is killing

• Abortion causes (and is intended to cause) the death of a living human being, homo sapien, a living human embryo or fetus.

Nillson 1966 photo, 11-week fetus

Nillson 1966 photo, 29-week fetus

William Blackstone, Commentaries on the Laws of England (1756)

• Rights of Persons:“Life is the immediate gift of God, a right

inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light but merely as a heinous misdemeanor.”

Declaration of Independence

• “[A]ll Men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness – That to secure these Rights Governments are instituted among men . . . .”

Erosion of the Ethic of Respect for Life

• More killing of aged, infirm, disabled, handicapped

• More child abuse • More violent crime• Less compassion, humanity,

sensitivity• “Hearts of men wax cold”

Slavery and AbortionSlavery

• Reject humanity of slaves• Deny ‘personhood’ slaves• Clm: Best for slaves• Clm: No right tell slaveowner• Clm: Slave owners’ right choose• Clm: Constitution protects• Clm: abolition lead to chaos• Clm: unfair impose on class (S-O)• Clm: “person” only when set free• Clm: leave alone, gradual abol• Hierarchical view race• Vigorous suppress abolitionist speech• Clm: Abolitionists religious fanatics• Lincoln: Is a man not a man because

he is Black?

Abortion

• Reject humanity of unborn child • Deny personhood of human UC• Clm: Best for unwanted unborn cren• Clm: No right tell woman what to do• Clm: Women’s right to choose• Clm: Constitution protects• Clm: Restrict abortion lead to chaos • Clm: Unfair impose burden (Wo)• Clm: “Person” only when born • Clm: Not restrict, become ‘rare’• Hierarchical view human life• Draconian laws limit pro-life speech• Clm: Pro-lifers are religious fanatics• Pro-Life: Is a child not a child because

she is yet in the womb?

Liberals and Conservatives, Men and Women Criticize Roe

• Bickel• Ely• Epstein• Cox• Glendon

The Continuing Holocaust of Abortion in the USA

• Nearly 50 million reported lives destroyed by abortion since Roe (1973)

• Plateau of abortion level (slow drop) if account for demography

• 1.21 million abortions reported in 2005• 47% repeat abortions• Nearly ¼ of all pregnancies end in abortion• 37% of all abortions after at 9 or more weeks!!• Less than 2 percent (2%) of all abortions for

‘hard cases’

The annual number of legal abortions increased through the 1970s, leveled off in the 1980s and fell in the 1990s

Number of abortions (in 000s)

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005

1970: Abortion laws liberalized in 15 states*

Roe v. Wade, Jan. 22, 1973

Source: GITiA08 = Trends in Abortion in the United States, 1973–2005, Guttmacher Institute 08

Abortions, 1972-2005

Year Number Abortions

Abortion Rate/1000 Women

Abortion Ratio/ 100 Pregnancies

% Abortion Repeaters

1972 587,000 -- -- --

1975 1,034,000 21.7 24.9 15.2 (74)

1980 1,554,000 29.3 30.0 33%

1985 1,589,000 28.0 29.8 41%

1990 1,609,000 27.4 28.0 45%

1995 1,359,400 22.5 25.9 47%

2000 1,313,000 21.3 24.5 48%

2005 1,206,200 19.4 22.4 47%

Abortions: 1972-2005 (AGI data)*

*The Alan Guttmacher Institute produces the most reliable data on abortions in the United States. However, even the AGI estimates that 3-6% of all abortions are unreported. (CDC data is usually 12-19% lower than AGI because of CDC’s passive methods.)

Many women obtaining abortions have had a previous abortion, but the proportion has stabilized over time

(GITiA08)

% of abortions obtained by women who had a previous abortion

0%

20%

40%

60%

80%

100%

1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003

State Restrictions on Abortion

Parental consent or notificationrequired for minors 35 states (15 without)

Mandatory counseling 32 states (18 without)

Waiting periods 24 states (26 without)

OK private insurance to exclude coverage for abortion 4 states (46 without)

Source: PRCH & GI 08, Overview; Guttmacher, 2007

98

171515

202021

0

5

10

15

20

25

30

UnitedStates

Australia Sweden Denmark Canada England &Wales

Germany Netherlands

Source: Source: PRCH &GI 08, Overview; Sedgh, 2007

Abortions per 1,000 women

U.S. Abortion Rate Higher Than in Many Other Industrialized Countries

Most Important Reason Given for Terminating an Unwanted Pregnancy

Concern for/responsibility to other individuals 74%

Cannot afford a baby now 73%

A baby would interfere with school/

employment/ability to care for dependents 69%

Would be a single parent/

having relationship problems 48%

Has completed childbearing 38%

Source: PRCH & GI 2008 An Overview; Finer et al., 2005 (2004 data)

Who Has Abortions: Marital Status

Unmarried, 86%

Married, 14%

Source: PRCH &GI 08, Overview; Henshaw adjustments to Strauss et al., 2007 (2004 data)

Utah 2005 Abortion Reports: Reasons for Abortion

• 3,556 abortions in Utah, 3279 reported reasons

• 22 - mother’s life was endangered (0.7 %) • 13 - fetal malformation (0.4 %)• 1 - HIV positive (raising fetal health 0.4 %)• 2 - rapes (0.1 %; some years 20 rapes) • 0 - incest • 1 - “other” • Total = 39 of 3,279 abortions “serious”(1.2%)

Elie Wiesel, Night

• “Not far from us, flames, huge flames, were rising from a ditch. Something was being burned there. A truck drew close and unloaded its hold: small children. Babies! Yes, I did see this, with my own eyes . . . children thrown into the flames.”

• “How was it possible that men, women, and children were being burned and that the world kept silent. . . .”

(p. 32, 2006 ed.) (retranslation)

Elie Wiesel, Nobel Speech 1986

• “I swore never to be silent . . . . We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor . . . .”

Id. at 117, 118.

Gordon B. Hinckley, Standing for Something (2000)

What we desperately need today on all fronts . . . are leaders, men and women who are willing to stand for something. We need people . . . who are willing to stand up for decency, truth, integrity, morality, and law and order . . . even when it is unpopular to do so – perhaps especially when it is unpopular to do so.

. . . .. . . Never before, at least not in our generation, have the forces of evil been so blatant, so brazen, so aggressive as they are at the present time. . . . . . . .We are involved in an intense battle. It is a battle between right and wrong, . . . . [W]e desperately need men and women who, in their individual spheres of influence, will stand for truth in a world of sophistry. . . . We need moral men and women, people who stand on principle, to be involved in the political process. . . .

21 week fetus grasping surgeon’s finger